Posted on April 9, 2026 by Dominic Smith and Liam Mulligan 7

Is a registered VPA an “interest” in land?

It is common that Voluntary Planning Agreements (VPAs) will be registered on the title to the land to which they relate. The Environmental Planning and Assessment Act 1979 (EPA Act) expressly provides for registration and states that a VPA which has been registered ‘is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being had entered into the agreement.‘

However, enforceability against successors in title is just one feature of registration.  In a recent case, the Supreme Court held that registration of a VPA operated to create an “interest” in the relevant land on the part of the planning authority – in that case a local council – for the purposes of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

Background

A Voluntary Planning Agreement (VPA) was entered into in November 2021 between Parramatta Council, a landowner, and a developer, in relation to land at Wentworth Point. The VPA provided that parts of the land would be dedicated to the Council once certain works were completed, although this obligation was contingent on the developer’s completion of works.

The VPA was registered on title pursuant to s 7.6 of the EPA Act and recorded on the Register. The VPA included provisions for the Council’s protection, such as the right to lodge a caveat, which the Council took up, registering a caveat over the land in June 2023.

On 24 May 2024, TfNSW compulsorily acquired the land for a light rail project under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

The Council subsequently lodged a claim for compensation, asserting that its rights under the VPA constituted an interest in land. However, TfNSW and the Valuer General rejected the claim, concluding that the Council did not hold any compensable interest.

The Council brought judicial review proceedings to challenge both decisions.

Decision

The Supreme Court granted the relief sought by the Council and declared that the Council was the former owner of a registered interest in land for the purposes of section 37 of the Just Terms Act, that interest being its rights under the VPA .

Orders were made quashing the decisions of TfNSW and the Valuer General that no such interest existed.

Consequential to those orders, the Court required the Valuer General quantify the compensation, if any, that the Council is entitled to for the extinguishment of its interest.

Function of the Valuer General

As a preliminary issue, the Court addressed the validity of the purported decision of the Valuer General that the Council’s interest was not an interest in land.

The Court held that the decision was beyond power and confirmed that the statutory function of the Valuer General was limited to determining the compensation amount, rather than the question of whether an interest in land existed. That function is squarely a matter for the acquiring authority, in this case TfNSW.

Is the existence of an interest in land a jurisdictional fact?

The central issue considered by the Supreme Court was whether the existence of an interest in land under the Just Terms Act is a jurisdictional fact.

Under the Just Terms Act, the obligation to give a compensation notice under s42(2)(a) depends on whether a person had a registered interest in land immediately prior to acquisition. The task of determining whether or not such an interest exists falls to the acquiring authority.

But what happens when the acquiring authority’s determination about the existence of an interest is disputed? Is the authority’s decision final and unreviewable? Campbell J held that the determination is a jurisdictional fact – that is, an objective criterion and one that can be finally determined by a Court. It is not a decision entirely within the power of the acquiring authority to determine. In this respect, the Court found that TfNSW erred by treating the existence of an interest – particularly on registered on title – as a matter for its own evaluative judgment; effectively “going behind” the Register. The Court rejected this approach and held that the Torrens system requires decision-makers to accept the Register as definitive.

TfNSW’s failure to properly have regard to a registered interest amounted to a jurisdictional error.

Interest in land

A key issue was whether the VPA created a legal interest in land for the purposes of the Just Terms Act.

Campbell J held that the definition of “interest in land” under the Just Terms Act is broad, encompassing legal and equitable interests as well as rights and privileges connected to land. The Court rejected TfNSW’s argument that the VPA merely created contractual or personal rights. Instead, the Court held that it was necessary to consider the substance of the rights conferred by the agreement.

The VPA provided for the future dedication of land to the Council, contingent on the developer completing certain works. Although it was contingent, this right was sufficiently connected to the land itself and not merely a personal obligation. Importantly, the rights arose under statute and were binding on successors in title. The Court noted that the interest had proprietary effect and limited assignability. While not freely assignable, that interest could be transferred within a defined class which was sufficient to characterise those rights as an interest.

The Court therefore held that a VPA created an interest in land entitling the Council to compensation upon compulsory acquisition of that land.

You can read the Supreme Court’s judgment here: City of Parramatta Council v Transport for NSW [2026] NSWSC 294.

If you have any questions regarding this article, please leave a comment below, or contact Liam Mulligan on (02) 8235 9715 or Dominic Smith.